Permissible Limits On Employee Social Media

When do an employee’s criticisms, complaints, or derogatory statements constitute protected activity, and when are there proper grounds for discipline or termination?

Several recent NLRB opinions suggest answers. Employee communications critical of the employer or fellow employees are protected, provided the communication is intended to generate conversation about working conditions or group action towards the employer. Thus employees are free to discuss working conditions, benefits, or wages. Communications that are critical of the employer are not protected where they merely constitute griping and do not encourage concerted activity.

An employee’s private communications on social media are not protected merely because they are made outside the workplace. Employees may find this counterintuitive, so employers must make an effort to convey this message.

Policies that are too broad may violate the National Labor Relations Act. An unlawful policy would be prohibiting employees from posting statements that harm the company’s reputation, or consist of “disrespectful conduct and language” or in any way “depict” the company without permission. The NLRB found Costco’s social media policy was overly broad, where it prohibited postings that “damage the company” or “any person’s reputation.” Similarly, General Motors went too far with generalized prohibitions of conduct that is “offensive, demeaning or inappropriate.” Walmart struck the right balance where it prohibited discriminatory remarks, harassment, threats of violence or unlawful conduct. This formulation still allows employees to engage in concerted activity to improve working conditions.